In response to a series of reports by human rights organizations andinternational legal scholars documenting serious large-scaleviolationsof international humanitarian law by Israeli armed forces in itsrecentwar on the Gaza Strip,10U.S. state attorneys general sent a letter[.pdf] to Secretary of State Hillary Clinton defending the Israeliaction. It is virtually unprecedented for state attorneys general ?whose mandates focus on enforcement of state law ? to weigh in onquestions regarding the laws of war, particularly in a conflict on thefar side of the world. More significantly, their statement runsdirectlycounter to a broad consensus of international legal opinion thatrecognizes that Israel, as well as Hamas, engaged in war crimes.

The wording of the letter closely parallels arguments by Bushadministration officials in support for Israel?s devastating offensiveduring their final days in office. Having been signed nearly11weeksafter the end of the fighting and made public only late last month, itmay have been part of an effort to undermine tentative efforts by theObama administration to take a more balanced approach to theIsraeli-Palestinian conflict.

A statement by state attorneys general putting forth a legal rationalefor the large-scale killings of civilians is particularly distressingasconcerns about civilian casualties from U.S. air and missile strikesinAfghanistan and Pakistan have grown.

The attorneys general signing on to the letter included RepublicansRobMcKenna of Washington, Mike Cox of Michigan, John Suthers of Colorado,Bill McCollum of Florida, Jon Bruning of Nebraska, and Mark ShurtleffofUtah. Signatories also included such prominent Democrats as RichardCordray of Ohio, Patrick Lynch of Rhode Island, Jack Conway ofKentucky,and Buddy Caldwell of Louisiana.

Facile Legal Reasoning

The legal rationale put forward in the March30letter isextraordinarily facile. For example, they claim that the war waged onthe civilian infrastructure of the Gaza Strip was taken in furtheranceof Israel?s ?right to self-defense under Article51of the UN Charter.?In reality, however, while Article51does allow countries the right toresist an armed attack, it doesn?t grant any nation the right toengagein such a disproportionate response.

Israeli Defense Minister Ehud Barak admitted that the Israeli invasionhad been planned for months, back when a six-month cease-fire wasstillin effect. Even when Hamas resumed firing rockets into Israel inDecember, following a deadly Israeli raid into Gaza the previousmonth,there were few casualties. Indeed, not a single Israeli had beenkilledby Hamas rocket attacks for more than half a year prior to Israellaunching its war on Dec.27. During the subsequent three weeks offighting, Palestinians killed10Israelis, three of whom were civilians,while Israeli forces killed more than1,400Palestinians, the vastmajority of whom were civilians.

Incredibly, these attorneys general insist that these mass killings byIsraeli forces were ?justified and, in our view, met the internationallegal standards.?

The attorneys general also ignored the fact that Article33of the UNCharter explicitly prohibits nations going to war unless they ?firstofall, seek a solution by negotiation, inquiry, mediation, conciliation,arbitration, judicial settlement, resort to regional agencies orarrangements, or other peaceful means of their own choice.? However,Israel ? with strong bipartisan U.S. support ? had refused to evenmeetwith Hamas to negotiate a long-term cease-fire, which Hamas hadofferedprior to the breakdown of the six-month lull in return for a lift intheIsraeli siege of the enclave.

The letter correctly accuses Hamas, which had lobbed rockets intocivilian-populated areas in southwestern Israel, of violatingArticle48of Protocol I to the Geneva Convention of1948, which states: ?Partiesto the conflict shall at all times distinguish between the civilianpopulation and combatants and between civilian objects and militaryobjectives and accordingly shall direct their operations only againstmilitary objectives.?

However, the attorneys general refused to acknowledge that Israel hadalso violated that same provision on a far grander scale. Whilevirtually every human rights organization, intergovernmentalorganization, and international legal authority that researched thisrecent conflict recognizes both Hamas and Israel were guilty of warcrimes, these attorneys general still insist that Hamas alone was toblame and that Israel?s actions were perfectly legal.

Ignoring the Facts

Human Rights Watch (HRW) ? which has been highly critical of Hamasattacks on civilian areas of Israel as well as repression by theIslamist group of Palestinian opponents within the Gaza Strip ?reportedduring the fighting that in using heavy shelling against heavilypopulated civilian areas, ?Israel is committing indiscriminate attacksin violation of the laws of war.? In a comprehensive report publishedinMarch, HRW noted that ?Israel?s repeated firing of white phosphorusshells over densely populated areas of Gaza during its recent militarycampaign was indiscriminate and is evidence of war crimes.?

Similarly, while Amnesty International also ?found evidence of warcrimes and other serious violations of international law by allpartiesto the conflict? and attacks by both sides against civilian areas inwhich no fighters were present, the attorneys general insisted thatthePalestinian side alone was guilty of such illegal actions.

An independent United Nations inquiry documented six major Israeliattacks against UN buildings, including schools in which children werekilled, noting that actions by Israeli forces ?involved varyingdegreesof negligence or recklessness with regard to United Nations premisesandto the safety of United Nations staff and other civilians within thosepremises, with consequent deaths, injuries, and extensive physicaldamage and loss of property.? The report concluded that ?no militaryactivity was carried out from within the United Nations premises inanyof the incidents.?

Without presenting any evidence to the contrary, the attorneys generalcategorically rejected such findings, insisting that Israel wasengagedonly in ?a limited and directed action against the source of Hamas?military acts.?

The International Committee of the Red Cross (ICRC) focused on otherwarcrimes, noting how the ?Israeli military failed to meet its obligationunder international humanitarian law to care for and evacuate thewounded,? citing instances in which Israeli forces prevented Red Crossor other medics safe access to assist seriously wounded civilians. TheIsraeli chapter of Physicians for Human Rights reported with ?certainty?that Israel violated international humanitarian law by attackingmedics,damaging medical buildings, engaging in indiscriminate attacks oncivilians, and delaying medical treatment for the injured. The ICRCdeclared Israel?s ?delay in allowing rescue services accessunacceptable.? In addition, Israel rejected pleas by internationalhumanitarian agencies by closing border crossings days at a time,denying access to food, medical supplies, fuel, and water sanitationequipment. Despite this, the attorneys general instead praised Israelfor ?allowing the entrance of humanitarian aid into Gaza.?

A report by a delegation of prominent U.S. attorneys which visitedGazaStrip soon after the fighting reported that ?that Israeli forcesdeliberately targeted civilians during the Gaza offensive.? TheIsraelipress has reported testimony of Israeli soldiers who killedPalestiniancivilians under highly permissive rules of engagement that allowedsoldiers to kill any Palestinian in certain areas regardless ofwhetherthey were armed, and were ordered to intentionally destroy civilianproperty. An investigation by the British newspaper the Guardianrevealed a series of Israeli missile attacks against clearlydistinguishable civilian targets.

United Nations Special Rapporteur for Human Rights in the OccupiedTerritories Richard Falk, noting Israel?s ?unlawful uses of force on alarge scale? against Gazan society as a whole, referred to theoperationas a ?flagrant violation of international humanitarian law, as setforthin the Geneva Conventions.? Falk, an American Jew and emeritusprofessorat Princeton University who is arguably the country?s preeminentinternational legal scholar, also noted the illegality of Hamas rocketattacks into Israel, but stressed that Israeli air strikes?were aimedatcivilian areas in one of the most crowded stretches of land in theworld.?

Ignoring such evidence, the attorneys general insisted that Israel wasdirecting its artillery, bombings, and missile attacks only toward ?thesource of Hamas? military attacks? and the Israeli government shouldtherefore not be held responsible for any military action that harmedPalestinian civilians because they did so ?unintentionally.?

Defending Mass Killings of Civilians

These attorneys general try to absolve Israel of any responsibility ofthe hundreds of civilian deaths by accusing Hamas of ?using thesecivilians as human shields.? They provide no evidence for this charge,however, save for a quote from the notoriously right-wing editorialpageof the Wall Street Journal.

Independent human rights groups have accused Hamas of less-severeviolations of international humanitarian law, such as not taking allnecessary steps it should to prevent civilian casualties when itpositioned fighters and armaments too close to concentrations ofcivilians. However, this isn?t the same thing as deliberately usingcivilians as shields. Furthermore, the nature of urban warfare,particularly in a territory as densely populated as the Gaza Strip,makes the proximity of retreating fighters and their equipment tocivilians unavoidable in many cases.

Even if Hamas were using human shields in the legal definition of theterm, it still does not absolve Israel from its obligation to avoidcivilian casualties. Amnesty International has noted that the GenevaConventions make it clear that even if one side is shielding itselfbehind civilians, such a violation ?shall not release the parties totheconflict from their legal obligations with respect to the civilianpopulation and civilians.?

To argue otherwise, as do these attorneys general, is a dangerouslegalposition for the chief law enforcement official of a state to take,suchas ordering their state police to kill innocent people in a hostagesituation. By this logic, if a botched bank robbery led the would-berobbers to hold bank employees and customers at gunpoint, theseattorneys general could then order state patrolmen to kill the gunmenand hostages alike, defending their action on the grounds that the badguys were using ?human shields.?

Denying Political Reality

It?s not just this flawed legal reasoning that underscores how thisinitiative by these attorneys general was based not upon a legitimateinterpretation of law but for narrow ideological purposes. They revealtheir political prejudices in their insistence in the letter toClintonin claiming that ?Israel withdrew from Gaza in2005? but that thePalestinians failed to establish ?a flourishing independent state.? Inreality, despite the removal of illegal Israeli settlements and thewithdrawal of occupation forces from that crowded urban enclave,Israelhas maintained sole control over Gaza Strip?s airspace and territorialwaters, thereby prohibiting movement of people and goods by land andsea, as well as largely controlling the Gaza Strip?s border withEgypt.With Israel effectively preventing any exports or imports, except foroccasional humanitarian aid, the economy has collapsed and, even priorto the war, the territory was experiencing a serious humanitariancrisis. Since Israel?s ?withdrawal,? the Israeli government has alsocontrolled the Gaza Strip?s electricity, water, and telecommunicationsand has periodically engaged in air strikes and armed incursions intothe enclave, murdering and kidnapping suspected militants. No peoplecould reasonably be expected to establish ?a flourishing independentstate? under such circumstances. Furthermore, in maintaining theirsiegeon the enclave, Israel legally remains the occupying power.

The attorneys general go on to accuse Hamas of taking advantage ofIsrael?s ?withdrawal? to ?cause a civil war with the PalestinianAuthority, leading to a coup d?etat in2007.? However, while Hamas isindeed guilty of innumerable political intrigues and inexcusableviolence towards its Palestinian opponents, this is a grossmisrepresentation of recent history.

Rather than making war against the Palestinian Authority, Hamas waspartof the Palestinian Authority. Indeed, they controlled the legislativebranch of government as well as the post of prime minister and mostother ministries as a result of winning the plurality of the vote inparliamentary elections in January2006. The following year, Saudiofficials negotiated a power-sharing agreement between Hamas andFatah,which still controlled the presidency. U.S. officials, however,unsuccessfully encouraged President Mahmoud Abbas to renounce theagreement, dismiss the entire government, and abolish parliament.

The Bush administration then began secretly arming Fatah groups toenable them to fight Hamas and pushing Fatah to stage a coup. This iswhat led Hamas to launch a countercoup by overrunning Fatah officesandtaking full control of the Gaza Strip in June2007. Alvaro de Soto,former UN special coordinator for the Middle East peace process,stated[.pdf] in his confidential final report leaked to the press a fewweeksbefore the Hamas takeover that ?the Americans clearly encouraged aconfrontation between Fatah and Hamas? and ?worked to isolate anddamageHamas and build up Fatah with recognition and weaponry.? De Soto alsorecalled how in the midst of Egyptian efforts to arrange a cease-firefollowing a flare-up in factional fighting earlier that year, a U.S.official told him that ?I like this violence. ? [I]t means that otherPalestinians are resisting Hamas.?

Though all this has been well-documented and is widely known in bothIsrael and Palestine, this bipartisan group of attorneys general hasinstead sought to defend the Bush administration?s provocative andillegal intervention by putting the entire blame on Hamas.

This letter to the secretary of state was put together by a right-winggroup calling itself the American-Israel Friendship League (AIFL),whichboasts that the organization has sent42state attorneys general toIsrael in the past21years. It refers to the letter as ?a strongrejoinder to those who have castigated Israel over its role in Gazaandused it in an attempt to delegitimize the Jewish state.?

Dangerous Precedent

The Bush administration strongly supported Israel?s war on the GazaStrip as an extension of its ?war on terror.? It was in the name ofthis?war on terror? that President George W. Bush shamelessly politicizedthe U.S. Justice Department to justify spying on nonviolent dissidentsat home and the torture of suspects abroad. Now we have a bipartisangroup of state attorneys general who have shown themselves similarlywilling to politicize their offices by putting forward twisted andperverse interpretations of the law in the name of fighting terrorism.Unless these rogue attorneys general are challenged by electedofficialsand ordinary citizens in their respective states for their signing ontosuch a reckless statement, it could mark a dangerous precedentregardingrespect for human rights and the rule of law.